Shell Eastern Petroleum (Pte) Ltd v Goh Chor Cheok and Others

• Jurisdiction: Singapore
• Judge: Warren Khoo L H J
• Judgment Date: 01 September 1999
• Neutral Citation: [1999] SGHC 230
• Docket Number: Originating Summons No 827 of 1997
• Date: 01 September 1999
• Year: 1999
• Published date: 19 September 2003
• Plaintiff Counsel: Lok Vi Ming and Ian Chang (Rodyk & Davidson)
• Citation: [1999] SGHC 230
• Defendant Counsel: Mak Kok Weng (Mak & Partners)
• Court: High Court (Singapore)
• Subject Matter: Future interests,Adverse possession,Bringing common law land under Land Titles Act,s 177(3) Effect of Land Titles Act 1993,Registration of title,Land,s 177(3) Land Titles Act 1993,Caveats,s 42(3) Land Titles Act (Cap 157),Whether cancellation of caution gives original registered proprietor indefeasible title,s 50 Land Titles Act (Cap 157, 1994 Ed),Effect of defendants' failure to lodge caveat to protect interest acquired by adverse possession,Qualified title issued,ss 26, 46 Land Titles Act (Cap 157, 1994 Ed),s 50 Scope of Land Titles Act (Cap 157, 1994 Ed),Title unqualified by cancellation of caution by original registered proprietor

This is a claim for a strip of land in respect of which the defendants claim adverse possession. In or about 1961, developers built a block of flat on land adjoining the plaintiffs` land. By accident or design, they built a retaining wall which, it has since been discovered, encroached on the plaintiffs` land. The land was not part of land held under the Torrens system of land registration under the Land Titles Act (Cap 157), at least not until November 1992. It was what is known as common law land.

Section 9 of the Limitation Act (Cap 163) as it was in force until its amendment in 1993 (with effect from 1 March 1994), provided as follows:

9(1) No action shall be brought by any person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him, or, if it first accrued to some person through whom he claims, to that person.

(2) Nothing in this section ... shall be deemed to apply to any person registered under or by virtue of the provisions of the Land Titles Act as the proprietor of the land sought to be recovered, or to any person claiming through a person so registered, except to the extent that such Act so provides or permits.

Subsection (2) referred to provisions of the Land Titles Act. The relevant provisions were in the then s 42. I shall refer to that further later.

As the land in question was common law land, the general provisions of sub-s (1) applied to it. So, no action could be brought against the defendants after 12 years from the date of accrual of action, ie from the date of commencement of adverse possession of the land. Taking 1961 as the commencement date of adverse possession, the right of action would have been, and was, extinguished by 1973.

But three things have happened since then. First, in November 1992, the land of which the disputed land is a part was brought under the Land Titles Act, and a qualified title was issued in respect of it. Secondly, there were the 1993 amendments to the Land Titles Act, which included amendments to s 9 of the Limitation Act as well, which limited or abolish the acquisition of title by adverse possession, both in relation to common law land and registered land. Thirdly, the caution on the qualified title was cancelled on 2 May 1996 apparently on the application of the plaintiffs.

The question in these proceedings is whether any of these three events has any effect on the position, which had been reached by 1973, that action to recover the land had become statute-barred. I shall consider them in turn.

Effect of qualified title

When the land was brought under the Land Titles Act in November 1992, the provisions of that Act then in force applied to it. Section 42 of the Act as then in force provided as follows:

(1) Any person in adverse possession of registered land who, if that land had not been brought under the provisions of this Act would have become entitled thereto by virtue of that adverse possession, may apply to the Registrar for a certificate of title to that land, provided that not less than 12 years have elapsed since the land was brought under the provisions of this Act, or since the entry in the land-register of the most recent memorial of registration or notification of an instrument (other than an instrument of statutory obligation) affecting that land.

(2) Except as in this Division provided, no title to land adverse to or in derogation of the title of a proprietor shall be acquired by any length of possession by virtue of the Limitation Act or otherwise, nor shall the title of any proprietor be extinguished by the operation of that Act.

(3) Nothing in this Act affects the operation of the Limitation Act with respect to the right of a person in adverse possession of land comprised in a qualified certificate of title where the possession commenced before the land was brought under the provisions of this Act and that right has been protected by caveat.

As the land was brought under the provisions of the Act only in November 1992, no application under sub-s (1) could have been made. The relevant provision would have been sub-s (3). The land was held under qualified title, the adverse possession had commenced before it was brought under the provisions of the Act. However, the defendants did not lodge a caveat; they have in fact never lodged any caveat. What is the effect of this?

The question was discussed by Chan Sek Keong J in the very thoughtful judgment he delivered on behalf of the Court of Appeal in Wong Kok Chin v Mah Ten Kui Joseph [1992] 2 SLR 161 . In that case the adverse possession commenced some time in December 1969. The land was brought under the Act in August 1974, before the expiry of the 12-year limitation period at the end of December 1981. The adverse possessor did not lodge a caveat until June 1988; he in fact lodged it only after the true owner had, following the eruption of the dispute, lodged a notice of reassertion of ownership.

The then s 19 of the Land Titles Act provided for the endorsement, lapsing and cancellation of cautions on qualified certificates of title when land was brought under the provisions of the Act. It read as follows:

(1) Upon the issue of a qualified certificate of title the Registrar shall endorse on the relevant folio of the land-register a caution warning persons dealing with the proprietor that the land therein comprised is held subject to any interest which affected it at the date of issue of the qualified certificate of title, and so long as the caution remains on the folio the land shall be so held.

(2) In favour of any purchaser from the proprietor, a caution lapses at the expiration of 5 years from the date of issue of the qualified certificate of title, and the purchaser may request the Registrar to enter on the folio of the land-register a notification of the lapsing.

(3) When the lapsing of a caution has been notified on the folio of the land-register, the certificate of title ceases to be qualified, and the land therein comprised is thenceforth held subject only to such interests as are registered or notified on the folio of the land-register and to such interests as are otherwise excepted by section 38.

...

(5) The proprietor of land comprised in a qualified certificate of title may at any time apply to the Registrar for cancellation of the caution endorsed thereon, and upon proof to his satisfaction that there are no outstanding interests which are not notified on the folio of the land-register the Registrar shall enter thereon a notification cancelling the caution.

The relevant provisions of s 20 read as follows:

(2) any person claiming an interest in land which was subsisting at the date of issue of a qualified certificate of title for that land may, so long as a caution remains on the folio of the land-register, protect that interest by a caveat pursuant to section 104, and the Registrar shall enter a notification of such a caveat in the land-register.

His honour held that the failure to lodge a caveat did not have the effect of reviving the title of the true owner which had been extinguished by limitation. He said:

It is clear from s 20 of the Act that until the registered proprietor of land held under qualified title obtains the cancellation of the caution, his title will always be subject to subsisting interests affecting his title.

The only person who is able to obtain a title free from any prior interests affecting such land is a purchaser when that caution expires against him after five years from the date of conversion and when the caution is cancelled on his application.

His honour went on to say:

The caveat referred to in s 42(3) is intended to protect the rights of an adverse possessor against a purchaser, and not against the registered proprietor. The right of a person in adverse possession of registered land falling within the terms of s 42(3) can only be defeated by a purchaser where such right is not protected by caveat, or by the registered proprietor lodging a reassertion of ownership before his title has been extinguished by limitation.

Similarly, in the instant case, the plaintiffs` title to the disputed land had been extinguished when the land was brought under the provisions of the Act. The failure of the defendants to lodge a caveat would only have had an adverse effect on them in relation to a purchaser from the plaintiffs. Vis-.-vis the plaintiffs as the original registered proprietor against whom the defendants had acquired title by adverse possession, the absence of a caveat had no effect on the defendants` title.

Position as result of 1993 amendments

In 1993, the Land Titles Act underwent extensive amendments. The amendments came in the form of the Land Titles Act 1993. As I mentioned earlier, they came into force on 1 March 1994. In addition to the Land Titles Act, s 9 of the Limitation Act, which I have referred to, was also amended, by the addition of a new sub-s (3).

For convenience, I set out the whole of s 9 with this new sub-section:

(1) No action shall be brought by any person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him, or, if it first accrued to some person through whom he claims, to that person.

(2) Nothing in this section ... shall be deemed to apply to any person registered under or by virtue of the provisions of the Land Titles Act as the proprietor of the land sought to be recovered, or to any person claiming through a person so registered, except to the extent that such Act so provides or...